Question About Straw Purchase Transfers

[Chaz88]

I am little confused on the transferring later.

I buy guns for my kids to use. We live in the same state. My state has no requirement for FFL transfer for private exchanges. When my kids are of age they are not prohibited persons. I gift them the guns they liked using the most and they go on their merry way. Problem?

Another possibility- It is Christmas and my 22 year old lives on their own, in my state, and wants a pistol. I buy it with my money wrap it up with a bow and put it under the tree. Christmas day is great they got just what they wanted then take it and go on their merry way home. Problem?

I am not being facetious I am continually confused about the nuances that these situations turn on when it comes to legality.

 

[Brian Pfleuger]

You bought the gun, you can gift it to your children. No problem.

The problem comes in using someone else's money to buy a gun when they are not the one filling out the 4473 and the gun will be transferred to their possession.

 

[Chaz88]

Thanks for moving and answering Brian.

Every time I read the 4473 when buying for my kids to use or as a gift the language of the question has me second guessing legality.

 

[Brian Pfleuger]

The instructions on the 4473 answer a lot of those questions and give examples but most people never read them. It specifically says that legitimate gifts for a 3rd party are acceptable.

 

[Chaz88]

The instructions on the 4473 answer a lot of those questions and give examples but most people never read them. It specifically says that legitimate gifts for a 3rd party are acceptable.

I always read the questions carefully, just in case they changed something. But have never carefully read the instructions. Reading is my friend. I will make a point of reading the instructions.

 

[Brian Pfleuger]

Here's the instructions from the 4473 for question 11a, which is the "Straw Purchase" question:

Question 11.a. Actual Transferee/Buyer: For purposes of this form, you are
the actual transferee/buyer if you are purchasing the firearm for yourself or
otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from
pawn/retrieving it from consignment, firearm raflle winner). You are also the
actual transferee/buyer if you are legitimately purchasing the firearm as a gift
for a third party. ACTUAL TRANSFEREE/BUYER EXAMPLES: Mr.
Smith asks Mr. Jones to purchase a firearm for Mr. Smith. Mr. Smith gives Mr.
Jones the money for the firearm. Mr. Jones is NOT THE ACTUAL TRANS-
FEREE/BUYER of the firearm and must answer “NO” to question 11.a. The
licensee may not transfer the firearm to Mr. Jones. However, if Mr. Brown
goes to buy a firearm with his own money to give to Mr. Black as a present,
Mr. Brown is the actual transferee/buyer of the firearm and should answer
“YES” to question 11.a. However, you may not transfer a firearm to any
person you know or have reasonable cause to believe is prohibited under 18
U.S.C. § 922(g), , or (x). Please note: EXCEPTION: If you are picking
up a repaired firearm(s) for another person, you are not required to answer
11.a. and may proceed to question 11.b.

I bolded the gift section. Note the first example they give of an illegal transfer, just after the bolded section. It is essentially the exact question we were discussing in the other thread.

 

[Chaz88]

That is how I thought it was supposed to work. But with the way times have changed and how thin the bread is sliced on legal and illegal for some things I now have confusion and questions about things that I had not thought much about before and figured common sense applied.

Not so long ago I would have applauded a 15 year old that earned their own money for guns. Now I have to berate the 15 year old for possibly facilitating a felony, or at least try and give a strong hint that they should consider revising their inaccurate statement of the facts.

 

[Brian Pfleuger]

I whole-heartedly agree.

With any luck, the SCOTUS wil find in favor of the defendent in the Abramski(sp?) case.

Such things are zero victim laws and should not be tolerated. A young man that earns his own money should absolutely be able to have his father buy and hold a firearm for the boy's uses and to later transfer it to him at the appropriate age.

 

[Frank Ettin]

I've closed this thread to try to avoid us once again entering the straw purchase swamp.

1. The current state of the law is discussed in this thread and generally summarized in this post:

   And your evidence of Congressional intent is?

   
   tou-che my friend, nothing is obvious once ink hits paper. Intent "is" usually thrown in the garbage.

   Not really. In fact, a court will look at legislative intent when dealing with a question of how a statute is supposed to be applied in a particular situation. But in doing so, courts will want to hear good arguments based on some solid evidence to support one side's or the other's contention of what legislative intent was or why a statute should be applied one way or another.
   
   

   ...My view as a layman is that this was not a straw sale. The defendant didn't receive money from his uncle in advance -- he purchased the gun using his own money, and he then subsequently sold it to his uncle -- through an FFL...

   A while ago I outlined current law on straw purchases in this thread on THR:

   ...The actual offense is violation of 18 USC 922(a)(6), making a false statement on the 4473 (specifically about who is the actual buyer), and has nothing to do with the ultimate recipient being a prohibited person.
   
   See the ATF publication Federal Firearms Regulation Reference Guide, 2005, at page 165 (emphasis added):

   15. STRAW PURCHASES
   
   Questions have arisen concerning the lawfulness of firearms purchases from licensees by persons who use a "straw purchaser" (another person) to acquire the firearms. Specifically, the actual buyer uses the straw purchaser to execute the Form 4473 purporting to show that the straw purchaser is the actual purchaser of the firearm. In some instances, a straw purchaser is used because the actual purchaser is prohibited from acquiring the firearm. That is to say, the actual purchaser is a felon or is within one of the other prohibited categories of persons who may not lawfully acquire firearms or is a resident of a State other than that in which the licensee's business premises is located. Because of his or her disability, the person uses a straw purchaser who is not prohibited from purchasing a firearm from the licensee. In other instances, neither the straw purchaser nor the actual purchaser is prohibited from acquiring the firearm.
   
   In both instances, the straw purchaser violates Federal law by making false statements on Form 4473 to the licensee with respect to the identity of the actual purchaser of the firearm, as well as the actual purchaser's residence address and date of birth. The actual purchaser who utilized the straw purchaser to acquire a firearm has unlawfully aided and abetted or caused the making of the false statements. The licensee selling the firearm under these circumstances also violates Federal law if the licensee is aware of the false statements on the form. It is immaterial that the actual purchaser and the straw purchaser are residents of the State in which the licensee's business premises is located, are not prohibited from receiving or possessing firearms, and could have lawfully purchased firearms...

   
   So, if --
   
   

   1. X says to Y, "Here's the money; buy that gun and then we'll do the transfer to me [when I get back to town, or whenever else].", or
      
      
   2. X says to Y, "Buy that gun and hold it for me; I'll buy from you when I get my next paycheck."

   or anything similar, if Y then buys the gun, he is not the actual buyer. He is buying the gun as the agent of X, on his behalf; and X is legally the actual buyer. If Y claims on the 4473 that he is the actual buyer, he has lied and violated 18 USC 922(a)(6). His subsequently transferring the gun to X in full compliance with the law, does not erase his prior criminal act of lying on the 4473.
   
   Some more examples --
   
   

   • If X takes his own money, buys the gun and gives the gun to someone else as a gift, free and clear without reimbursement of any kind, X is the actual purchaser; and it is not a straw purchase.
     
     
   • If X takes his money and buys the gun honestly intending to keep it for himself and later sells it to another person, X is the actual purchaser; and it is not a straw purchase.
     
     
   • If X takes his money and buys the gun intending to take it to the gun show next week to see if he might be able to sell it to someone at a profit, X is the actual purchaser; and it's not a straw purchase. He may, however have other problems if he manages to sell the gun at the gun show, and the transfer there isn't handled properly. He might also have problems if he does this sort of thing too frequently, and the ATF decides he's acting as a dealer without the necessary license.
     
     
   • If X takes his money and buys the gun with the understanding that he is going to transfer the gun to Y and that Y is going to reimburse him for it, X is not the actual purchaser. He is advancing X the money and buying the gun for and on behalf of Y, as Y's agent. So this would be an illegal straw purchase.

   
   Whether or not a transaction is an unlawful straw purpose will often be a question of intent. But prosecutors in various situations can convince juries of intent, often from circumstantial evidence. A slip of the tongue, posting something on the Internet, tracks left by money transfers have all, in one way or another, and in various contexts, helped convince a jury of intent.

   
   The real issue here is likely to be the language of the statute (18 USC 922(a)(6), emphasis added):

   (a) It shall be unlawful—
   
   ...
   
   (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter; ...

   
   The general legal definition of "material" is:

   Important; more or less necessary; having influence or effect; going to the merits; having to do with matter, as distinguished from form....

   
   So is the misrepresentation as to who the actual purchaser is material when the subsequent transfer was done at an FFL on a 4473?
   
   The argument may have some merit, and indeed the Fifth Circuit in United States v. Polk, 118 F.3d 286 (5th Cir. 1997) decided that the misrepresentation as to the actual purchaser was not material when the subsequent transferee (the actual purchaser) could legally buy a gun directly.
   
   But the Fourth Circuit in this case does not agree, nor do the Sixth Circuit (United States v. Morales, 687 F.3d 697 (6th Cir. 2012)), and Eleventh Circuit (United States v. Frazier, 605 F.3d 1271 (11th Cir. 2010)).
   
   

   ...I can't find anywhere in the links about the reason the uncle could not purchase it himself...

   As discussed above, that's not relevant under current law (at least in the Fourth, Sixth and Eleventh Circuits).

   
   
2. And as discussed in that thread, the Supreme Court will be looking at the question, so things could change.
   
   
3. But things haven't changed yet.